On April 4 we reported on 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009) (Thomas, J.), and published a follow-up post on April 7, 2009 (posts available here and here). The question before the Court was whether “a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate [Age Discrimination in Employment Act (“ADEA”)] claims is enforceable as a matter of federal law.” The Court told us the answer was “yes.” 
That answer, of course, begs the question whether any particular collective bargaining agreement (“CBA”) “clearly and unmistakably” requires arbitration of statutory claims. The Court in Shipkevich v. Staten Island Univ. Hosp., No. 08-CV-1008 (FB)(JMA), 2009 WL 1706590 (E.D.N.Y. June 16, 2009) recently considered, among other things, whether the CBA before it clearly and unmistakably required arbitration of claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), New York State civil rights legislation, and New York City’s Human Rights Law, and said the answer was “no.” So let’s take a brief look at Shipkevich to get some perspective on what “clear and unmistakable” means.
The CBA in Shipkevich said that “Neither the Employer nor the Union shall discriminate against or in favor of any Employee on account of race, color, creed, national origin, political belief, sex, sexual orientation, citizenship status, marital status, disability or age.” The CBA’s arbitration agreement said “A grievance . . . which has not been resolved [under the CBA’s grievance procedure] may, within thirty (30) working days after completion of . . . the grievance procedure, be referred for arbitration by the Employer or the Union. . . .”
By comparison, the CBA in Pyett:
- “require[d] union members to submit all claims of employment discrimination to binding arbitration under the CBA’s grievance and dispute resolution procedures”, 129 S. Ct. at 1461;
- expressly referenced several specific anti-discrimination statutes, including the ADEA and Title VII; and
- said that all discrimination claims “shall be subject to the grievance and arbitration procedures . . . as the sole and exclusive remedy for violations,” 129 S. Ct. at 1461 (quoting CBA).
The Court held that the absence of any express reference to anti-discrimination statutes meant that the CBA did not clearly and unmistakably require arbitration of Shipkevich’s statutory discrimination claims. The Court noted that the CBA before it was similar to the one in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), where the CBA’s broad arbitration clause did not expressly submit Title VII claims to arbitration, but, without referencing Title VII expressly prohibited workplace discrimination:
Nowhere in the CBA is there an explicit statement that such claims are subject to mandatory arbitration. On the contrary the CBA here is more similar to the one at issue in Gardner-Denver than the one in 14 Penn Plaza: The CBA in Gardner-Denver prohibited discrimination with a list of prohibited activities and did not mention any statutes. It contained a broad definition of events that could trigger the grievance procedure, and provided that disputes not settled by the grievance procedure ‘may be referred to arbitration.’ Despite this broad language, Gardner-Denver held, as explained in 14 Penn Plaza, that the ‘collective-bargaining agreement did not mandate arbitration of statutory antidiscrimination claims.’ Thus, 14 Penn Plaza requires the same result in the present case: the CBA does not require arbitration of Shipkevich’s discrimination claims.
2009 WL 1706590, at *2 (citations and parenthetical quotations omitted).
The Shipkevich case underscores that which follows from Pyett: For an arbitration agreement to “clearly and unmistakably” submit statutory discrimination claims to arbitration, the agreement must, at a minimum, clearly and unambiguously say that statutory claims for discrimination must be arbitrated. It may be, however, that courts will narrowly construe Pyett to mean that the submission is “clear and unmistakable” only when the particular statutes on which the discrimination claims are based are specifically set forth in the arbitration agreement, as they were in Pyett.
Hat tip to LinkedIn Commercial and Industry Arbitration and Mediation Group managers Don Philbin and Victoria VanBuren for passing this case along to the Forum. Don is an arbitrator, mediator, negotiator, attorney, and business consultant, whose website is here. In addition to his other work Don frequently writes and speaks on topics pertinent to ADR, and is an adjunct professor at Pepperdine University Law School’s prestigious Straus Institute for Dispute Resolution. As readers may know, Victoria is blog master of the excellent ADR blog, Disputing, and an attorney at Karl Bayer, Dispute Resolution Expert who focuses her practice on intellectual property law and alternative dispute resolution.
Tags: 14 Penn Plaza LLC v. Pyett, 14 Penn Plaza v. Pyett, ADEA, Alexander v. Gardner-Denver Co., Arbitrability, Authority of Arbitrators, CBA, Clear and Unmistakable, clearly and unmistakably, collective bargaining agreement, Discrimination, Labor Arbitration, Labor Law, New York Human Rights Law, Shipkevich v. Staten Island Univ. Hosp., Title VII, United States District Court for the Eastern District of New York, United States Supreme Court
[…] Recently, we came across yet another Pyett progeny. This time, it was the U.S. District Court for the Eastern District of New York’s turn in Shipkevich v. Staten Island Univ. Hosp. & Aramark, 2009 U.S. Dist. LEXIS 51011 (E.D.N.Y. June 16, 2009) to decide the “clearly and unmistakable” requirement. Check out New York attorney Philip J. Loree, Jr. excellent analysis of this opinion in: Shipkevich v. Staten Island Univ. Hosp., 14 Penn Plaza LLC v. Pyett, and the “Clear and Unmistakab… […]